Atheism and the Courts

53 Pages Posted: 11 Dec 2006

See all articles by David Burnett

David Burnett

University of Virginia - School of Law, Alumnus or Degree Candidate Author

Date Written: May 2006


Very little has been written about the treatment of atheists and atheism by American courts, but this note fills that gap by examining a range of judicial opinions on this topic. The Supreme Court now holds that atheists deserve the same constitutional protection as theists, although only two Court opinions have specifically dealt with atheistic plaintiffs. As I explain, most lawsuits in the lower courts involving atheists have failed.

I group these atheism-related lawsuits into two categories, meritorious and meritless claims. Meritorious claims engage the courts in seriously considering the scope of First Amendment rights and thereby help to define atheists' rights. Even though many of these claims fail, they nonetheless present legitimate arguments. On the other hand, many cases involving atheists or alleged atheists fail to raise serious issues at all, and often fail on the facts, even before reaching the legal issues. These meritless cases frequently involve allegations of discrimination or personal harm for which the plaintiff lacks any evidence. This distinction between meritorious and meritless atheism claims illuminates the treatment of atheists by American courts and society. Common wisdom holds that atheists are a large, persecuted minority, so therefore we might expect to find many serious and successful lawsuits brought by atheists, and perhaps some indication of mistreatment by the courts. Instead, the scarcity of meritorious lawsuits on this topic and atheists' apparently fair treatment by the courts suggests that atheists may not be as persecuted as we think. Nevertheless, the important goal underlying these suits - enforcing and extending the separation between church and state - should encourage future lawsuits brought by atheists.

Keywords: atheism, atheist, Supreme Court, First Amendment, free speech, discrimination, Christianity, religion, oppression

Suggested Citation

Burnett, David, Atheism and the Courts (May 2006). Available at SSRN: or

David Burnett (Contact Author)

University of Virginia - School of Law, Alumnus or Degree Candidate Author ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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